R. v. J.C., 2023 ONCJ 349

WARNING The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code , which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (

b) on application made by the victim, the prosecutor or any such witness, make the order. . . . 486.6 OFFENCE —

(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. CITATION: R. v. J.C., 2023 ONCJ 349 DATE: August 1, 2023 ONTARIO COURT OF JUSTICE Toronto Region Toronto Ontario BETWEEN: HIS MAJESTY THE KING Applicant — and — JC Respondent

RULING ON CROWN’S 752.1 APPLICATION Patricia Garci a ........................................................................................... counsel for the Crown Vincent Rishea.................................................................................... counsel for the accused JC BOTHAM J.: [ 1 ] The Applicant seeks an order for assessment pursuant to

section 752.1 of the Criminal Code on the grounds that the Respondent has been found guilty of serious personal injury offences within the meaning of

section 752 of the Criminal Code , namely voyeurism, possession of child pornography, make child pornography and access child pornography. [ 2 ] The Respondent concedes that all necessary elements for an assessment under

section 752.1 of the Code have been met, except for a future likelihood of reoffending as set out in either the Dangerous Offender or Long-Term Offender provisions of the Code. [ 3 ] The Respondent fairly points out that there is no evidence that he has ever been subject to any significant counselling or rehabilitative measures, such as would reasonably have been expected to occur in conjunction with a lengthy sentence.

In addition, there has been a significant break in time between the 1994 offending behaviour and these predicate offences, suggesting that the Respondent in fact can control his conduct in the community. [ 4 ] The crown submits that there is another series of offending conduct from 2000 which I can consider in assessing the respondent’s likelihood of re-offending.

It is the position of the Respondent, that because those charges were judicially stayed, that conduct cannot not be considered on this Application or any subsequent application relating to this matter. [ 5 ] I heard brief submissions on the legal implications of a judicial stay. In my view, given the issues I need to decide, the admissibility or inadmissibility of the 2000 conduct does not need to be resolved in this application. [ 6 ] On July 4, 1994, the Respondent was convicted of sexual interference and possession of child pornography. He had known the families of his victims since birth.

At the time of arrest, they were 11 and 13 years of age. He was their scout leader and would visit them at home and the children would visit him. During 1989, there were two separate sleep overs. While the boys were asleep, photographs were taken of their anal and genital areas. [ 7 ] In 1993, as a result of a break and enter, a bag belonging to the Respondent was located.

Inside were sixteen polaroid photographs of two young boys, which constituted the evidence of the offences for which he was convicted. [ 8 ] I don’t propose to review the facts of the predicate offences in any detail, since there was an agreed statement of facts, which is part of the application record. But I will reference some relevant aspects of them. [ 9 ] In 2022 a search warrant was executed at the Respondent’s address. An extensive collection of child pornography was located. In addition videos of young males were located that appeared to have been filmed surreptitiously.

Through investigation, the location of at least some of the videos was identified. [ 10 ] The Respondent was a long-time family friend and a frequent visitor to the home. He had babysat the two youngest male children at their home and his. Numerous surreptitious videos of the children had been taken at both locations. Two of their friends had also been recorded. Many of the videos met the Criminal Code definition of child pornography. [ 11 ] Although there are only two instances of relevant offending conduct before me, the conduct discovered in 1993 and that in 2022 is not dissimilar.

It involved similarly aged victims. Both times, the Respondent, by virtue of his relationship with the family, was able to abuse a position of trust and the manner in which he did so was not dissimilar, namely the surreptitious sexual recording of young males. The offending conduct for both sets of offences was protracted in nature. [ 12 ] Given the repetitive nature of his offending conduct and the length of time during which each series of offences occurred, I am satisfied that there exist reasonable grounds to believe that the Respondent might be found to be a dangerous or long-term offender. As such, per

section 752.1 I am required to make the order for assessment sought by the Applicant. [ 13 ] This matter will return to court on August 17, 2023 so that a remand for an assessment can be made . Released: August 01, 2023

Signed: Justice L. Botham